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Book_ - t fS 




































f t 






fL 

SPEECH 

• ■ 1 ‘ P P •' v V'% 

Mr. 'G I L E S. 


the bill received from the Senate ,. entitled “ An Act to repeal certain 
nets respecting the organisation of the courts of the U. States.” 

T • I k. ■ 

Delivered in the House of Representatives , February 18, 1802. 

^ * V 

— ■■■ mu ••• • — . .- 


jp Mr. Giles faicl, that he felt feme de¬ 
gree of appreheniion, that in the courfe 
•he deemed it neceffary to take in the dif- 
cuffion of this quelhon, iome obfervations 
T.ng'ht fall trom him, which might not be 
ill Uriel harmony with the feelings of 
dome gentlemen of the committee. He 
iiio'uld regret, however, if a corn- 
prince with a ftnfe of dutv fhould pro- 
I duce that cffeil. Pie laid, therefore, that 
'lie wifhed to apprife gentlemen, that he 
intended to airedl his obfervations as 
much as poffible to the effefts and ten¬ 
dencies of mea lures ; and that when he 
i was condrained to Ipeak of the views of 
ntlemen, it would be with refjiedl to 
ij. what he conceived to be their opinions 
|m relation to the general intereds ; and 
trot to private gratifications. He laid, it 
was natural that men ffiould differ in the 
choice of means to produce a given end, 

: dud more natural that they fhmid differ 
vu the choice of political means than any 
j other ; becaufe the fubjedt prefented 
i more compld ated and variable objefts, 
out of which to make a c hoice. Acco.rd- 
* ft ugly a great portion of the human mind 
I has been at all times directed towards 
Monarchy, as the bed form of govern¬ 
ment to enforce obedience and enlure the 
general happinefs ; whereas another por- 
1 tion ot the human mind, has given a pre¬ 
ference to the republican form, as, bed 
calculated to produce the fame end ; and 
||>ere is no reafon for applying improper 
motives to individuals, who ffiould give 
a preference to either of thefe principles ; 
pi ovi dec! in doings fo, they follow the 
honed dictates of their own judgments. 
It mult be obvious to the mod common 


©bferver, that from the commencement 
of the government of the United States, 
and perhaps before it, a difference of 
opinion exilled amongd the citizens, hav¬ 
ing more or leis reference to thele two 
extreme fundamental points; and that it 
manifeded itfelf in the modification or 
adminidration of the government, as JfoQn 
as it was put into .operation. On one 
lide it was contended, that in the organi¬ 
zation of the conditution, a due appor¬ 
tionment of authority had not been made 
amongd the feveral departments. That 
the legiflature was too powerful for the 
executive department; and-to create and. 
preferve a proper equipoife, it was necef¬ 
fary to mfufe into the executive depart¬ 
ment by legiflation all artificial powers, 
compatible with the conditution, upon 
which the mod diffulive condruClion wryt 
given ; or, in other words, to place in 
executive hands all the patronage it was 
poffible t Q create, for the purpoie of pro¬ 
tecting the Prelident againd the full 
force of his conditutional lefponlibiiity 
to the people.—On the other fide, it was 
contended, that the do&rine of patron¬ 
age'was repugnant. to the opinions and 
feelings of the peop'e ; that it was un- 
necefhuy, experffive and o[ pi effive, and 
that the bigheft energy the government 
could pofTefs, would flow from the confi¬ 
dence of the great mals of the people, 
founded upon their own icnfe of their 
common intereds. Hence what is called 
party,in the United States, grew up from 
a divifion of opinion refpeclmg the fe two 
great charadteriffic principles, patronage, 
or the creation of partial iptereds .for the 
protection and fupport of government, on 










the one fide.—.On the other fide, to effect 
the fame end, a fair refpon Ability of all 
reprefentatives to the people ; an adher¬ 
ence to the general interefts, and a reli¬ 
ance on the confidence of the people at 
large, refulting* from a fenfe of their com¬ 
mon interefts. A variety of circumftan- 
ces exifted in the United States, at the 
commencement of the government, and a 
great number of favorable incidents con¬ 
tinued afterwards to arife, which gave 
the patronage fyftem the preponderancy, 
during the firft three Prefidential terms 
of election ; notwithflanding it was evi¬ 
dent, that the fyftem was adopted and 
purfued in direct hoftility to the feelings 
and opinions of a great portion of the 
American people. The government was 
uftiered into operation under a vaft ex¬ 
citement of federal fervor, flowing from 
its recent triumph on the queflion of 
adopting the conititution.—At that time 
a confiderabie dabt was afloat in the U- 
nked States, which had grown out of the 
revolutionary war. This debt was of 
two kinds ; the debt proper of the U- 
nited States, or engagements made by 
the United States in their federal capa¬ 
city; the other, the ftate debts, or en¬ 
gagements entered into by the reipedtive 
i \&tes for the fupport of the common 
caufe. 

The favorers of the patronage fyftem 
readily availed themfelves of thefe ma¬ 
terials for crediting a monied intereft; 
gave to it a ftability, or qualified perpe¬ 
tuity, and calculated upon its certain 
fupport in all their meafures of irrefpon- 
iibility. 

This was done not only by funding the 
<3ebt proper of the U. States, but by af- 
fuming the payment ot the ftate debts, & 
funding them alfo ; and it is believed, ex¬ 
tending the affumption beyond the adtual 
engagements of the dates. Hence the 
federal axiom, that a public debt is a pub¬ 
lic blefling.—Shortly after this event, an 
Indian war fprang tip, he would not fay 
by what means ; in confequence of which 
tsji army w-as added to the lift of patron¬ 


age ; the Algerines commenced a predr 
tory war upon the commerce of the TJ 
nited States, and thence a navy forme 
a new item of patronage. Taxes becam. 
neceflary to meet the cxpences of thi 
fyftem, and an arrangement ©f interm 
taxes, an excife, See. See. ftill fwelled th 
lift of patronage. But the circumftanc 
which rnoft favored this fyftem, was th 
breaking out of a tremendous and ur. 
precedented war in thofe countries c 
Europe with which the United State 
had the mod: intimate relations. Th 
feelings and fympathies of the people o 
the U. States were fo ftrongly attracle' 
by the tremendous feenes cxiftmg there 
that they coniidered their own interna 
concerns in a lecondnry point of view 
After a variable conduct had been pur 
fued by the United States in relation t< 
thefe events, the depredations commit 
ted upon commerce and the excitement 
produced thereby, enabled the admini 
ftration to indulge themfelves in a mor 
decifive courfe, and they at once pufliei 
forward the people to the X. Y. Z. o 
their political alphabet, before they ha< 
well learned and underftood the A. B. C 
of the principles of the adminiftration. 

Armies and navies were raifed, and : 
variety of other fchsmes of expence wer 
adopted, which placed the adminiftratioi 
in the embarraffing predicament, eithe 
to violate their faith with their publi< 
creditors, or to refort to new taxes. Th 
latter alternative was preferred, accompa 
nied with other ftrong coercive mcafure 
to enforce obedience. A land tax was laic 
for 2,000,000 of doll ars. This meaftir* 
awakened the people to a fenfe of thei 
fituation; and fhook to the foundatioi 
all thofe federal ramparts which hat 
been planned with fo much mgenui 
ty, and erected around the executive wit! 
fo much expence and labour. Anothei 
circumftance peculiarly favourable to tin 
advocates of executive patronage was 
that during the two firft prelidentia 
terms, the chief executive magiftrate 
pofiefled a greater degree of popularity' 


and the confidence of the people than 
ever was, or perhaps ever will be, again 
attached to the perfon occupying that 
dignified Ration. The general difcjuie- 
tude, which manifefted itfelf in coni’e- 
quence of thefe enterprifing meafures, in 
the year 1800, induced the federal party 
to apprehend, that they had pufiied their 
principles too far, and they began to en¬ 
tertain doubts of the relult of the pre.fi- 
dential election, which was approach¬ 
ing. In this Rate of things it was natu¬ 
ral for them to look out foi fome depart¬ 
ment of the government, in which they 
could intrench themfelves in the event of 
an unfuccefsful ifiue in the election ; and 
continue to fupport thole favourite prin¬ 
ciples of irrefponfibility, which they could 
never content to ahandon. The judicia¬ 
ry department of courfe, prefcnted it- 
felf as beft fitted for their objedt, not 
only becaufe it was already filled with 
men, who had manifefted the moR inde¬ 
corous zeal in favour of their principles, 
but becaufe they held their offices by in¬ 
definite tenures, were not fubjebt to pe¬ 
riodical appointments, and of courfe were 
further removed from any refponfibility 
to the people, than either of the other 
departments. Accordingly on the 1 1th 
of March 1800, a’bill for the more con¬ 
venient organization of the courts of the 
United States was prefented to the houfe 
of reprcfentatives. This bill appears to 
have had for its objedls, l R, the gradual 
demolition of the Rate courts by encreaf- 
ing the number, and extending the jurif- 
diction of the federal Courts. 2d, To 
afford additional protection to the prin¬ 
ciples of the then exiRing adminiftration 
by creating a new corps of judges of con¬ 
curring political opinions. This bill 
however was not pa Red into a law dur¬ 
ing that feftion of congrefs, perhaps from 
an apprehention, that it would tend to 
cncreale the difquietudes which other 
meafures had before excited, and there¬ 
fore operate unfavourably to the ap¬ 
proaching presidential election. At the 
next feilion after the relult of the electi¬ 


on was afpertp.ined, the bill, after having 
undergone fome confiderable alteration.*, 
was palled into the law now under clif- 
curfion, This law, it is now faid, is in¬ 
violable and irrepealable. It is faid, the 
independence of the judges will be there¬ 
by immolated. Yes, fir, this law is now 
con fide red as the fanftuary of the princi¬ 
ples of the laft adminiftration, and the 
tenures of thejurges as the horns of in¬ 
violability within that faniftuary. He 
faid, we are now called upon to rally 
round the eonRitution as the ark of our 
political fafety. Gentlemen, difearding 
all generalifing expreffions, and the fpirit 
of the inftrument, tie clown all confiruc- 
tion to the RriA letter of the eonRitution. 
He laid it gave him great pleafure to 
meet gentlemen on this ground ; and the 
more fo, becaufe he had long been in the 
habit of hearing very different language 
from the fame gentlemen. He had long- 
been in the habit of hearing the fame 
gentlemen fpeak of the expreffions of 
il the common defence and general weir 
fare,” as the only valuable part of the 
eonRitution, that they were fiufficient to 
obliterate all the fpecifications, and limi¬ 
tations of power. That the eonRitution 
was a mere nofe of wax, yielding to e- 
verv impreflidfi it received. That every 
u opening wedge,” which was driven 
into it, was highly beneficial, in fevering 
afiuncler the limitations and refiridlions 
of power. That the republicanifm it 
fecured, meant any thing or nothing. 
It gave him therefore great pleafure at 
this time to obey the injunctions of gen¬ 
tlemen in rallying round the eonRitution 
as the ark of our political fafety, and of 
interpreting it by the plain and obvious 
meaning and letter of the fpecified pow¬ 
ers. But, he faid, as if it was always the 
unfortunate defiiny of thefe gentlemen to 
be upon extremes, they have new got 
round to the oppofite extreme point of 
the political compafs, and even beyond 
it. For, he faid, they not only tie down 
all couftruilion to the letter of the in¬ 
ftrument, but they tell us, that they fee. 


an*! callUpon us'alfo to fee written there¬ 
in, in large capital chai liters, u the in¬ 
definite independence ofjudgeswhicfi, 
to the extent they carry the meaning of 
th^' 1 term, i >• neither to be found in the 
letter or fpipt of that inftrument, or in 
any other political eftabliftmient, he be¬ 
lieved, under the fun.- Mr. Giles faid, he 
rejoiced that this fubjeft was now to be 
di feu fled; lie thought the crifis peculiar¬ 
ly aufpicious for the difcufflon. He laid 
the European world, with which the U- 
nited States have the moft relations, is 
now tranquilized. The tremendous feenes 
of blood and revolution, which had agi¬ 
tated that portion of the globe, had at 
length fubfided into profound peace; and 
had left mankind, in filent amazement, 
to retrofpe61 the wonderful event's which 
were paffed; and he hoped, with calm 
deliberation to improve the lelTons they 
had furnilhetf for the benefit of man- 
hind in time to come. The interefts 
snd fyinpathies, which the people a of 
the United States felt in thele e- 
vents, no longer turn their attention 
from their own internal concerns ; ar¬ 
guments of the higheft confideration 
for the fafety of the ' conftitution, 
and the liberty of the citizens, no long¬ 
er receive the fhort reply, French par¬ 
tisans !' Jacobins! Diiofgahizers ! 
And although the gentleman from North 
Carolina, fees, or thinks he lees the de- 
ftmefive spirit mount in the whirl¬ 
wind and direct the {form ; let him be 
confoled by the information, 4 that all 
thefe our actors are mere spirits and 
are diffolved into thin air.’ Yes, fir, 
thefe magical delufions are now vanilli- 
cd, and have left the American people jc 
their congrefs in their real perlons, arid 
original American characters, engaged 
in the trahfaction of American con¬ 
cerns. 

Upon taking a view of our internal 
fituation, be obferved, although party 
rage may not be done away ; it may be 
laid, its higheft paroxifm is paft. And 
although the gentleman from New- 


York, (Mr. T. Morris) ycuerday ob¬ 
ferved, that the Prefident had commenc¬ 
ed a fyftem of persecution ; fo ignorant 
he faid, he was of the exiftence of fuch 
a fyftem, that he could not conceive to 
what the gentleman alluded. It is 
feme time, Mr. Chairman, fince a mem¬ 
ber of this Houfe, and fundry printers 
.throughout the United States, have been 
amerced and imprifoned to appeafe the 
vengeance of an unconftitutional fedi- 
tioii a (ft, merely for pifbliftfing their 
own fentiments, which happened to be 
unpalatable to the then exifting admi- 
niftration ! It is fomc time, fir, fir.ee we 
have feen judges who ought to have 
been independent, converted into politi¬ 
cal partisans, and like executive milfio- 
paries pronouncing political harangues 
throughout the United States! It is 
fome time, fir, fince we have feen tho 
zealous judge, fioop from the bench to 
look out for more viftims for judicial 
vengeance I It is fome time fince w,e 
have feen the fame judicial impetuofity 
drive from the bar, the moft re- 
fpeftable count'd, who' humanely pre¬ 
po fed to interpofe between a friendlefs 
and unprotected man, and the judicial 
vengeance to which he was doomed ! 
It is fome time, fir, fince we have leen 
the fame judicial zeal extending the 
proviljons of the fedition aft, by difeo- 
vering that it had jurifdiftion of the 
jex non feripta, or common law ! It is 
fome time, fince we have feen the chief! 
executive magiftrate dooming to humi¬ 
liation 1 in dull and allies.’ a great por¬ 
tion of thb American people ! Yes, fir, 
thefe terrific feenes are paft. Thefe 
noify declamations, and this judicial 
zeal, are bulbed into filence by the au¬ 
dible pronunciation of the public will. 
He faid, we may even indulge the hope, 
Mr. Chairman, that our pulpits will 
not much longer be converted into po¬ 
litical forums ; and that the meek -and 
humble teachers of the ehriftian fai l), 
inftead of ftirringup all the angry and 
deftruftive paflions of the human mind, 


[ / 5 

will ere long, once more condcfcend, to 
teach thofe precepts of humility, for¬ 
bearance and toleration, taught them by 
their divine preceptor. Thole precepts 
I’o elTential to the clilcovery of truth, 
by pre-dilpofmg the mind to delibera¬ 
tion and refle&ion. 

The prefent Executive pur Cuing 
the general good, and i'upported by the 
general confidence, Hands not in need 
of thefe artificial aids. He in¬ 
vites inquiry. He knows, that the 
higheft encomium, which can be bellow¬ 
ed upon liis adminiftratioi), would flow 
from a correct underflanding of his 
motives and his conduct. Inftead of 
calling in the aid of {'edition acts, to 
the defamatory lcribblers, who appear 
to increale in numbers, and in impu¬ 
dence, in proportion to the defperation 
©f their caufe, 2nd their fecurity front 
punifhment, he has faid, £ let them 
Hand undifturbed, as monuments of the 
fafety," with which error of opinion 
may be tolerated, where reafon is left 
free to combat it.’ Under thefe auf T 
picious circnmftances, he faid, he pro¬ 
ceeded to the difcuflion of the important 
quedion before us with pleafure, con- 
feious that he was fubjedl to error, and 
knowing, that if he did err, it was his 
interest to be corrccled ; confident alio, 
that there was a mafs of intelligence 
and calm reflection at this time in the 
people of the United States, competent 
to deteCt the error, and apply the cor¬ 
rective. ImprefTed with thefe fenti- 
ments he differed widely in opinion 
with the gentleman from North-Caroli- 
na, (Mr. Henderfon) who had faid, 

* that if the bill upon your table fliould 
pafs into a law, he would not heave a 
figh or drop a tear upon the inftanta- 
neous demolition of the whole. conftitu- 
tion. The fooner it was done the bet¬ 
ter.* Sir, this gentleman and his affo- 
ciates in political opinions,have termed 
themfelves c lovers of order.' Is this 
an evidence of the practice, we are to 
expeCt from thofe gentlemen, under 


their profeflions fo long, and r loudly 
made to the people of the United 
States ? Cannot that gentleman find 
feme reafon to regret that Sentiment, in 
the confidence due to the intelligence 
and patriotifm of a great portion of his 
fellow citizens, who differ with him on 
that point ? Or da- the gentleman and 
his political affociates claim with pre- 
fumptuons vanity, not only theappcllation 
of the extlufive c lovers of order,’ but 
alfo the monopoly of all the intelligence 
and patriotifm of the nation ? He had 
too much i efpeCl for gentlemen, to fnp- 
pofe they would place their pretenfions 
on this ground. He begged pardon of 
the committee for this digreffion. He 
had been impelled to it from the 
courfe the debate had taken, and parti¬ 
cularly from the indecorous attacks made 
on the Prefident of the United States. 
He faid, he would n@w proceed to exa¬ 
mine whether the repeal of the judi¬ 
ciary law of the laH fefllon of con- 
grefs would in any relpeCl violate 
that lalutary and pra&icable inde¬ 
pendence of the judges, which was fe- 
cured to them by the conftitution. He 
faid the term independence of judges or 
of the judiciary department, was not to 
be found in the conftitution. It was 
therefore a mere inference from forne ot 
the fpecified powers; and he believed in 
the meaning of gentlemen, and to the 
extent they carry it,, the term is not to 
be found either in the fpirit, general cha- 
raCler, or plirafeology of any article or 
feCiion of the conHitution. He,meant 
to give the conHitution the moH candid 
interpretation in his power, according 
to the plain and obvious import of the 
Englifh language. He Ihould difeard in 
his interpretation, the terms u common 
defence and general welfare,” which 
had been reforted to by fome gen¬ 
tlemen. He conlidered thefe words as 
containing no grant of pouer whatever, 
but merely the expreflion of the ends or 
objeCU to be effected by the grants of 
fpecified powers. He therefore protefb- 



eel again ft drawing any aid whatever 
from them in his conftru£tion of the in- 
flrument. He laid he had read through 
the whole conftitution to enable him to 
form his opinion upon this queftion, for 
fear there might be in home hidden cor¬ 
ner of it, fome provifion, which, might 
demonftrate the uncontlitutionality of 
the pie lent bill ; and if fo, although he 
fhoul.'l lament fuch a provifion’, he would 
inftantly give up the bill. But his re- 
fearches had terminated in a different re- 
fult. He fa id he found from the gene¬ 
ral character of the conftitution, that the 
general will was its balls—the general 
good its objeft—and the fundamental 
principle for effecting this object, was 
the refponftbility of all public agents, ei¬ 
ther mediately or immediately to the 
people. He faid the context of the con¬ 
ftitution would demonftrate the two firft 
points, which he begged to read. 

“ We, the people of the United 
States, in order to form a more perfect 
Union, eftablilh Juftice, infure domeftic 
Tranquility, provide for the Common 
Defence, promote the General Welfare, 
and fecure the Bleffings of Liberty to 
Ourfelves and our poftevity, Do ordain 
and eftablifti this Conftitution for the 
United States of America.” 

Here we fmd the conftitution founded 
upon the will of the people; and 
the 'object declared to be, the good of 
the people. Through the whole body of 
the conftitution may be diicerned the 
refponftbility of al! public agents, either 
mediately, or immediately, to the peo¬ 
ple. This refponftbility refults, 1ft, 
f» th. divifton of authority into differ¬ 
ent departments—2d, From a lpecifica- 
tion and limitation of the authorities of 
all and e?.ch of the departments— 3 d, 
From periodical appointments of the 
public agents. The firft claufe declares 
there fhall be a Congrefs, t® whom the 
bufi nefs of legiflatioh is confided. This 
Congrefs is to confift, of a Houfe of Re- 
prefentatives to bn chofen by the people 
immediately, and refponfible to them at 


] 

the of every two years; and a Se¬ 
nate to be chofen by the legiflatures of 
the different dates, who are chofen by 
the people ; one third of the Senators to 
be cholen every two years, and refponfi¬ 
ble at the end of every fix years. The 
Executive power is veiled in a Prefident, 
who is cholen by electors who are cho- 
fen for that exprefs purpofe by the peo¬ 
ple, and refponfible at the end of every 
tour years. The Prcfident may be con- 
fidered as immediately refponfible to the 
people, although chofen through the 
medium of electors : Becaufe it is found 
in practice, that the electors are coji- 
ftrained to avow the vote they intend to 
give before they are chofen, and the 
people have generally made their elec¬ 
tions with a view to that object. 

Thus then* are formed two depart¬ 
ments, their powers lpecified and defin¬ 
ed, the times for exerciling their pow¬ 
ers fixed, and indeed a complete organi- 
fation for the execution of their refpec- 
tive powers without the intervention of 
any law for that purpofe. A third de¬ 
partment, to wit, the Judiciary depart¬ 
ment, is ftill wanting. Is that formed 
by the conftitution? How is that to be 
formed? It is not formed by the confti¬ 
tution. It is only declared that there 
fhall be fuch a department; and it is di- 
reefed to be formed by the other two de¬ 
partments, who owe a refponftbility to 
the people. Here there ariits an impor¬ 
tant difference of opinion between the 
different iicles of this houfe. It is con¬ 
tended on one ftde that the judiciary de¬ 
partment is formed by the conftitution 
itleif. It is contended on the other ftde, 
that the conftitution does no more than 
to declare that there fhall be a judiciary 
department, and directs, that it (hall be 
formed by the other two departments 
under certain modifications. Article 3. 
fee. 1. the conftitution has thefe words, 
i( The judicial power of the United 
States fhall be veiled in one fupreme 
court and in fuch inferior courts, as Con¬ 
grefs may from time to time ordain and 


[/ 7 ] 


eftablifh.” Here then the power to or¬ 
dain and eftabiifli inferior courts is given 
to Congrefs in the molt unqualified terms, 
and aifo. to ordain and eftablilh, cc one 
fupreme court.” The only limitation up¬ 
on the power of congrels in this claule, 
conftfts in the number of fupreme courts 
to be eftablilhed ; the limitation is to the 
number of one, although that is an affir¬ 
mative and not a negative expreffion. 
The number of judges—the affignation 
of duties—the fixing compenfations— 
the fixing the times when, and places 
where the courts (hall exercife their func¬ 
tions, See. are left to the entire difcretion 
of congrels. The ftpirit, as well as the 
words of the conftitution, are completely 
fatisfied, provided one fupreme court be 
eftablifhed. Hence, when all thefe ef- 
fential points in the organization and 
formation of courts is entrufted to the 
unlimited difcretion of congrels, it can¬ 
not be laid, that the courts are form¬ 
ed by the conftitution. For further re- 
ftraints therefore upon the difcretion ©f 
congrels, the remaining part of the lame 
fection id uft be confulted. Here he beg¬ 
ged leave to remark, that he had often 
felt a veneration for the wiillom of the 
fages, who formed this conftitution, cen- 
lldering the difficulties they had to en¬ 
counter, refulting from the various local 
prejudices, and local interefts of the dif¬ 
ferent parts cf the United States, and 
the vaft variety of opinions, which the 
fubjedf-prel’ented, it was almoft wonder¬ 
ful to conceive how they ftiould have hit 
upon a fyftem fo admirably calculated to 
protect and to promote the general inte¬ 
refts, when adminiftered according to its 
original meaning and intention. He 
could not go lo far, as to fay, it was per¬ 
fect. fie admitted, like other human 
productions, it was ftamped with the 
common fallibility of man. That he 
wifhed however, to fee no radical chan¬ 
ges in its principles. He willied to hand 
it down to pofterity with thole amend¬ 
ments only, which experience Ihould fug- 
gtft, and which would grow out of the 


continually varying* ftatc of the nation. 
He laid it was not only remarkable for 
the wifdom of its arrangements, but the 
correct and technical mode of expreffion. 
The part of the feCtion now to be exa¬ 
mined, was an example of the juftice of 
both thefe remarks. The words are, 
“ T he judges, both of the fupreme and 
inferior courts, lhall hold their offices 
during good behaviour, and ftiall, at ftat- 
ed times, recei vzfor their services a com¬ 
pensation which lhall not be dimimfhed 
during their continuance in office." 

The firitpart of this fentence refpeCts 
the relation (hip between the executive 
and the judiciary departments—It re- 
fpcCts judges or officers of the courts , who 
are appointed by the prelident. The laft 
part of the fentence refpeefs the relati¬ 
on Oiip between the legi dative and judicia¬ 
ry departments—It refpeefs the creation 
of offices, the fixing the compenfation of 
the officers or judges, and their conti¬ 
nuance in office. Thefe are the peculiar 
attributes of the legiftative department. 
Accordingly the moil correCf and tcchnT^ 
cal Avoids are ufed in relation to both 
thefe objeCfs. The term hold their of¬ 
fices during good behaviour, relates mere¬ 
ly to the executive department. The 
term hold, is the common technical word, 
ufed to convey the idea of tenure. Te¬ 
nure requires two parties. The ©ne 
granting , the other holding or receiving 
the grant. Let the enquiry be made, of 
whom do the judges hold? The confti¬ 
tution fnrnifhes the anfwer, of the Pre- 
fident. One of the moil obvious rules in 
the c'onftruCfion of inftruments of wri¬ 
ting is, that the whole of it muft be ta¬ 
ke!'. together, St not one particularpart by 
itfelf. The following* words will be found 
in the 2d feCtion of the 2d article of the 
conftitution. a And he, to wit: the 
Prelident, lhall nominate and by and with 
the advi :e and confent of the fenate lhall 
appoint ambaffadors, other public mini- 
fters and confuls, judges of the fupreme 
court, and all other office) s of the Unit¬ 
ed States, whole appointments are not 


C / 8 

herein other wife provided for, and which 
(hall be eftabiifhed by law.”° In the 3d 
lection of the fame article are thele 
words. “ and fhall, to wit, the Prefideh*, 
commiffion all the officers of the United 
States.” Thele three lcntences contain 
the relationship between the executive 
and judiciary departments fo far as re- 
fpedls the objedls of the prefent dii'cuffi- 
on. 

To afeertain the real meaning and 
import of theTe fentences, they ffiould 
be read in conneclion with each other, 
excluding therefrom all intermediate 
words not immediately • bearing on the 
fubjedt. In that cafe the constitution 
would read thus. 4 He (to wit) the 
Prefident Shall nominate and appoint 
the judges of the fupreme court and all 
other officers of the United States, and 
fhall commiffion ail the officers of the 
United States. The judges both of the 
fupreme and inferior courts fhall hold 
their offices during good behaviour.’ 

It may be now r.fked, if this cafe of the 
judges of the fupreme and inferior 
courts be not, an obvious exception out 
of the general Presidential diferetion of 
appointing and commiffioning all offi¬ 
cers of the United States during* plea- 
fure ? After the government has been 
in operation above twelve years, and 
the principle of commiffioning all exe¬ 
cutive officers during pie a lure has been 
pradlUed upon during the whole of the 
period by the executive, as well >as the 
legislative department, the propriety of 
that praclice is for the fir if time now 
become quefVtonable. It is faid .that 
the right to commiffion during pleafure, 
is by implication. It is readily admit¬ 
ted that there are no exprefs words in the 
conifitution to that effect; but the in¬ 
ference from the words which are there, 
is almolf as flrong as the words tliem- 
felves, if they had been inferted. The 
Prefident is authoriled without limita¬ 
tion to ‘ commiffion all r.he officers of 
the United States.’ The qneftion a- 
•jiies, by what tenure ? The reply, is, 


1 

\ J 

according to his pleafure, or diferatios.. 
It was not difficult to fcreicA that if 
the Prefident was fully empowered to 
commiffion as he plsafed, lie Vould 
pleafe to commiffion during his pea* 
lure. The legiflature has no more ccxi- 
troul over an offieer who holds an txty 
cutive commiffion during the pleafure of 
the Prefident, than over a judicial officer 
holding his office during his good' beha-j 
r'iour. 'i'he remedy given by the con hi*, 
tution being the fame in both cafes (to 
wit) impeachment. Nor is there any 
reafon why the office of the one fhonld 
be lefs fubjecl to the diferetion of the 
legiflature than the office of the other, 
and it feems to be univerfally agreed, 
that although the legiflature cannot 
deprive an executive officer of his of¬ 
fice in any other wav than by impeach¬ 
ment during the continuance of Inch 
office, yet the office itfelf is always fub- 
jedl to be abolifhed. The fame reason¬ 
ing will hold with equal force refpecling 
a judge and a judicial office. I'he rea¬ 
fon why the executive is profcribfly) 
from the removal of a judge, is to feed re 
to the judge a complete independence 
of the Prefident, who is not vefpcrffiblc 
for the difeharge of judicial duties ; 
but the removal is perfedlly corredl in 
the caffi of an executive officer, becanfe 
the Prefident’ is highly vefponfible for 
the due dilcharge of executive duties. 
The legiflature is not relponlible for 
either, and of courfe (lands in the fame 
conftitutional relation to both. This 
appears obvious from furmfhing to the 
legiflature the fame means of removing 
both, as will appear by the 4th lection 
of the 2d article in the following words.' 
“ The Prefident, Y’ice-preiident, and 
all civil officers of the United States 
(ball he removed from office by im¬ 
peachment for, anu conviction of, trea- 
fon, bribery, or other high crimes or 
mirdemeanours.” He now begged to 
call the attention of the committee par¬ 
ticularly to the htft clauIe of the fen- 
tence, which ascertains the conftitmip- 



nal connexion between the legislative 
and judicial departments, fo far as it re- 
fpcCts the limitation of the legiflative, 
in the exercife of the power committed 
to it, for the organization of the judi¬ 
cial department. He fliould place parti¬ 
cular emphafis on thefe words of the 
conftitution in the expofition he pro- 
pofed to make. The words are 1 and 
fhall at dated times, receive for their 
services, a compensation which .hall 
not be diminiflied, during their continue 
ance in ojficed The firft part of this 
fe&ion having given to congrefs the 
power of creating courts, afeertaining 
the number of judges, &c. thefe laft 
words may be conlidered as contain¬ 
ing explanations and limitations of the 
general power ef congrefs ; as was the 
foregoing part of this fentenee a limi¬ 
tation of the general executive power. 
And accordingly the mod correct terms 
are ufedfor limiting legiflative diferetion, 
and explaining its objects ; according to 
the words of this lenience, the judge 
Es to receive a compenfation, for his 
services* To whom are thefe fervices to 
be rendered l To the people, for the 
benefit of the people. Who is to 
judge of the neceifity or utility of thefe 
fervices.? The conftitution has ordained, 
that congrefs, or in other words the re- 
prefentatives of the people, ffiall be tfie 
tribunal. Snppofe there fliould be no 
fervices required, none for the judge to 
perform, or that congrefs fliould fo think 
and determine# is the judge intitled 
to compenfation .? He is not# The con? 
ditioij of fervice for the benefit of the 
people, is the exprefs confideration upon 
•which the compenfation accrues. No 
fervice is rendered ; the competent 
tribunal fays, there is none required, of 
courfe, no compenfation accrues. The 
judge is entitled to receive none. On 
this point, an obvious and mod: import¬ 
ant difference of opinion exids between 
•the two fides of the committee. On 
,one fide it is contended, that the office 
the veiled property of the jud^e con¬ 


ferred on him by his appointment, and 
that his good behaviour is the confide- 
ration of his compenfation, fo long 
therefore as his good behaviour exids, 
fo long his olfi.ee mud continue in con- 
fequence of his good behaviour, and that 
his compenfation is his property in vir¬ 
tue of his office, and therefore cannot 
be taken away by any authority whate¬ 
ver, although there may be no fervice 
for him to perforin. On the other fide it 
is contended, that the good behaviour is 
not the confideration upon which the 
compenfation accrues 5 but fervices ren¬ 
dered for the public good ; and that if 
the office is to be confidered as a proper¬ 
ty, it is a property held in truft for the 
benefit of the people, and mult there¬ 
fore be held, fubje^f to that condition, 
of whiph congrefs is the ponftitutionaf 
judge. Mr. G, faid, confidering the 
boundary line between thefe conflicting 
opinions, to be the boundary line be¬ 
tween offices field for public utility, and 
offices held for perfonal favor, he could 
not bellow too much attention upon this 
part of the difculfion ^ for if the con? 
ftiu&ion gentlemen contended for 
fliould prevail, m vain have the framers 
of the conftitution with fo much jealous 
pircumfpeftion erected fo many ramparts 
again It the introduction of fome of thefe 
offices in the government of the Unit¬ 
ed States.. A finecure office is an of¬ 
fice held without the condition of fer- 
yice; often for pall fervices already 
compenfated ; often for prefent favor, 
without the condition of any fervice* 
Tor the purpofe of excluding from the 
federal government all fineeure offices, 
the fages who formed the conditution 
have through every part of it connected 
fervices and compenfation, and they 
ought never to be feparated in conftrue** 
tion. The 6th fe&ion of the 1ft Art* 
is m thefe words, < The fenators and 
reprefentatives fhall receive a compensa¬ 
tion for their services to be afeertained 
by law, &c.’ and fo far has this prin¬ 
ciple of the rendition of ferviep- 


V\ 

[ 10*’ ] 


been carried; that the fervice of 
the fenate and reprefentatives is to he 
rendered every day, and unlefs they 
do daily render fervice, they are not en¬ 
titled to their day’s compenfation. In 
the Id feclion of the 2d Art. of the cou- 
.llitution are thefe words, 4 the Prefident 
(liall at Hated times, receive for his ser¬ 
vices a compensation , See.’ in the 3d 
Art. Id. ledlion, are thefe words, ‘ and 
Hi all (to wit, the judges dial!) at 
Hated times, receive for their services 
& compensation , See.’ In the 4 1 d Sec. 
of the adl under which the judges 
claim their compenfation are thefe 
words, 4 that each of the circuit judges 
of the United States, to be appointed 
by virtue of this a&, (hall be allowed as 
a compensation for his services , See.’ 
Thefe expreffions all demondrate the 
importance of coupling the fervice and 
compenfation of office. But the jealous 
caution of the framers of the conditu* 
tion did not dop at choofing the 
belt affirmative expreflion for exclud¬ 
ing this do&rine of fmecure offices, they 
alfo applied negative redraints. 

In the 9 th lection of the fir ft article 
of the conditution, are thefe words, 
44 No money (hall be drawn from the 
treafury but in confequence of appropri¬ 
ations made by law.” In the fame lec¬ 
tion, 44 No title of nobility {hall be grant¬ 
ed by the United States, and no perfon 
holding any office of profit or trud under 
them, (hall, without the confent of 
congrefs, accept of any prefent, emolu¬ 
ment, office or title of any kind whatever 
from any king, prince, or foreign date.” 
If then Cervices rendered for the public 
benefit, be the effential conlideration, 
upon which the compenfation does acc rue 
to the judges ; if the congrefs be the 
proper tribunal for pronouncing upon 
the neceffity or utility of fuch fervice, 
and if th^y decide that no fuch fervice 
is necefTary or ufeful ; the judge fudains 
no injury in not receiving the compenfa¬ 
tion ; becaufe he does not comply will 
tli2 condition on his part, nor does he 


fudain a hardfhip thereby ; becaufe it 
mud be prefumed that he underftood the 
conditions attached to his office at the * 
time of his acceptance. It has been 
admitted by all gentlemen that congrefs 
is the conditutional tribunal for deciding, 
refpecting the Cervices to be performed. 
They admit that congrefs may modify the 
courts, diminilh or add to their duties, 
alter the terms of their feffions or make 
any other arrangements refpe&ing them 
which do not go to take away or diminilh 
their compenfations. It is to be obferv- 
ed that there is not one of thefe powers 
fpecified in the conditution, they are 
therefore necelfary inferences from the 
paramount power, 44 to ordain and efta- 
blifh,” and the power of repeal or to 
take away all the Cervices to be perform¬ 
ed, is as necefl'ary an inference, as either 
of the others, and has uniformly rei'ult- 
ed from every other fpecified power in 
the conditution. From this part of the 
fentence, therefore, it is deducible ; that 
the only redraint upon the general power 
given to congrefs in the fird part of the 
l'e&ion to ordain and edablilh courts, is 
that the compenfations of the judges, 
fhould not be leffened during their con- 
tinuance in office—not during their good \ 
behaviour . And in this part of the fen¬ 
tence ttae correal phrafeology of the con¬ 
ditution is worthy of obl'ervation. In 
fpeaking of the executive attribute, (to 
wit) the appointing and commiffioning 
officers, the term g od behaviour is ufed. 

In fpeaking of the legiflative attribute 
(to wit) the creation of offices and fixing 
compenfations, the term, during their 
continuance in office , is ufed. The rea- 
fon for this variation of expreffion is 
obvious. It was known that the office 
might be discontinued and the judge con¬ 
tinue to behave well, the limitation was 
therefore applied to the office, and not 
the good behaviour, becaufe if the office 
ffioiild be difeontinued, which is clearly 
implied in this expreffion, it was not the 
intention of the conditution that the 
compenfation ffiould be received, no fer- 



] 


vice in that event being to be rendered. 
Prom this interpretation of the confiitu- 
tion all the departments are pr^ferved in 
the due exercile of their refpeClive func¬ 
tions for the general good, without any 
of the mifchievous and abfurd confe- 
quences refulting from the oppofite con- 
ftruflion. It is admitted that the firfl 
part of this fe&ion exprefsly veils con- 
grefs with the general power to ordain 
and eflablifh courts; and if there had 
been no other reflriCtinn, the confequent 
power to unordain, or abolifli. The 
reftridtion relied upon is not a reftri&ion 
in exprefs words ; there are no words in 
the conflitution, prohibiting congrefs 
from repealing a law for organizing 
courts. The reflraint contended for 
therefore, is by implication, and that 
implication to fay the leaft, not exprefs- 
ly conne&ed with any legiflative attri¬ 
bute. Is it right? Is it a correct inter¬ 
pretation ? That when a power is given 
in exprefs words for the mod important 
purpofes, that it fhould be reflrained or 
prohibited by implication ? Can fo much 
inattention and folly be attributed to the 
framers of the conflitution, as would 
refult from the fuppofition, that if it 
was their intention that a law growing 
out of one of the fpecified powers, in 
contradiftin&ion to all others, Ihould 
be irrepealable when once palled, that 
fo extraordinary a principle would be 
left to mere implication ? Such a fuppofi- 
tion would be the higheft injullice to the 
fuperior intelligence and patriotifm of 
thofe gentlemen, manifefted in every 
other part of the inllrument—No, fir, 
They would have made notes of admira¬ 
tion. They would have ul'ed every mark, 
adopted every caution, to have arrefied 
and fixed the attention of the legillature 
to fo extraordinary a principle. 

They would have Paid, legillators ! Be 
circumfpeCl! Be cautious ! Be calm ! 
Be deliberate ! Be wife ! Be wife not 
only for the prefent. But be wife for 
poiterity ! You are now about to tread 
upon holy ground. The law you are 


now about to pafs, is irrepealable ! irre¬ 
vocable ! We are fo enamoured with the 
falutary and practicable independence of 
the Englilh judiciary fyfiem, that in in¬ 
filling its principle into our conilit ution, 
we have ftampt it, with the proverbial 
folly of the Medes and the Perlians ! If 
this principle had been introduced into 
the conflitution in exprefs words, it 
would have formed an unfortunate con¬ 
trail to all other parts of th? inllrument; 
yet gentlemen make no difficulty in in¬ 
troducing that principle by conftru&ion, 
which would have appeared fo llupid and 
abfurd if written in e: p' efs words in 
the body of the inllrument. But there 
is no fucli language in the conflitution. 
Let us fee what is the language of that 
inftrument. ‘‘ The judicial power of the 
United States fhall be-vefted in one fu- 
preme court, and in fucli inferior courts 
as congrefs may from time to time, or¬ 
dain and ellablifh.” Here then inflead 
of cautioning the legifiature that a law 
for the organization of courts when paf- 
fed, can never be repealed, it contains 
an invitation to a revifion from time to 
time. It contains an intimation, that 
the fubjeCl is new and difficult, and an 
injun&ion to ordain and efiablilh your 
courts from time to time, according to 
the refults, which an experience ol the 
fyfiem alone could fuggefi. The gentle¬ 
man from Pennfylvania (Mr. Hemphill) 
obferved that the character ©f irrepeali- 
bility was not exclufively attached to 
this law, and attempted to furnilh in¬ 
fiances of other laws of the fame charac¬ 
ter. He infianced a law for the admif- 
fion of a new Hate into the union. 

The gentleman from Kentucky (Mr. 
Davis) had given a proper reply to that 
remark ; the firongeft inftance the gentle¬ 
man gave, was of a law executed ; after 
the new flute is admitted into the imion, 
in virtue of a law for that purpofe, the 
obieCl of the law is anfwered.—The fiate 
admitted has no flipulated duties to per¬ 
form on its part ; no fervices to n nder ; 
in the cafe before the committee the 


/#*>' 

f « 1 


law is in a ftate of execution, and the 
judges have fervices to render on their 
part which the competent tribunals may 
determine to be neither ufefui nor necef- 
fary.—A law for the appropriation of 
money to a given objedl, may be adduce 
ed as an inftance ; the money is applied j 
its object is anfwered; the law may be 
faid to be irrepealable* or, in other words* 
the repeal would produce no effect. 
That is not the cafe of the law in quef- 
tion. Mr. G. faid, he had no doubt but 
that the framers of the conflitution had 
particular reference to the Britifh a£t of 
parliament of William the 8d* for the 
eftablifhment of the independence of the 
judges in that country, in framing the 
fe&ion for the eftablifhment of the judi* 
cial department in the United States 5 
and it is not a little remarkable* that 
•whilft gentlemen in one breath fpeak of 
the independence of the Englifh judges* 
as the boafl and glory of that nation, in 
the next breath they tell us that by the 
tepeal of the preftnt aft* the indepen¬ 
dence of the judges here -Would be im* 
molated. Let this fubjedt be examined* 
In the 3 d chapter of the firfl book of 
Blackftone’s commentaries, the indepen¬ 
dence of the Englifh judiciary is tully 
explained. He begged to read the exs 
pofition of that commentator on that fub- 
jeft. 

“ And, in order to maintain both the 
dignity and independence of the judges 
in the fuperior courts, it is enafted by 
the flatute, 13 W. III. c* 2. that their 
comrniffions fhall be made (not, as for¬ 
merly, durante bene placito , but) quant - 
diu bene'se gesserint ■, and their falaries 
afcertained and eftabliflled; but that 
it may be lawful to remove them on 
the addrefs of both houfes of parlia¬ 
ment. And now, by the noble improve¬ 
ments of that law in the flatute of Geo* 
III. c. 23 . enacted at the earned re¬ 
commendation of the king hlmfelf from 
the throne, the judges are continued in 
their offices during their good behaviour, 
notwithstanding any dcrnife of the crown 


(which was formerly held immediately tot 
vacate their feats) and their full falaries 
are abfolutely fecured to them during 
the continuance of their commiffions $ 
his majefty having been pieafed to de¬ 
clare, that “ he looked upon the indepen- 
dence and uprightnefs of the judges, as 
u elfential to the Impartial adminiflra- 
tion of juftice 3 as one of the befl fe- 
44 curities of the rights and liberties of 
“ his fubje&s ; and as the rnoft conducive 
44 to the honor of the crown . u 

Now* fir* under the do&rine Contended 
for by the repeal of this law, let 11s fee 
whether tile judges of the United States 
are not more independent than the judges 
of England.aaasln the firfi place Congrcfs 
have the power of originating* abolish¬ 
ing, modifying, See. the courts here— 
The parliment in England have the fame' 
power there.—^Congrefs cannot remove 
a judicial officer from his offite, fo long 
as the office itfelf is deemed ufefui, ex¬ 
cept by impeachment* two thirds of the 
Senate being neCeffary to a Conviction# 
In England judges can be removed frorrl 
their offices, although the offices may bat 
deemed ufefui, by an addrefs of a ma¬ 
jority of the two houfes of parliament# 
Here then is One eflential advantage in 
favor of the independence of the judges 
of the United States. Congrefs cannot 
diminifh the compenfation of the judges 
here, during their continuance in officet 
In England the parliament may diminifh 
the compenfation of the judges at their 
diferetion, during their continuance irt 
office. Here then is another obvious 
advantage in favor of the indepen¬ 
dence of the judges of the United 
States 5 whence is it then, that we hear 
of the independence of tile Englifh ju* 
dtciary* as being the boaft and glory of 
that country, and with juftice too, and 
at the fame time, hear the cry of the im¬ 
molation of the independence of the 
judges of the United States; when un* 
del' the interpretation of the conftitutiou 
by the favorers of the repeal, the judges 
here are more independent than the Eng* 


i 13 I 


lifli judges ? It can have no other object 
than to excite a popular clamor, which, 
if excited at all, can have only a momen¬ 
tary efted, and will be difiipated as foon 
as the fubjed. fhali be thoroughly exa¬ 
mined and underftood* But it appear¬ 
ed to him, that if gentlemen really do 
value the independence of the judges, 
they have taken an unfortunate ground 
in the interpretation of the conflitution. 
Under their conftrudion, the judges may 
be placed not only in a dependent, but 
n ludicrous point of view. Gentlemen 
admit that Congrefs may confiitutionally 
increafe or diniinifh the duties of the 
judges ; give or take away jurifdiddon ; 
fix the times of holding courts, &c. lav¬ 
ing therefrom the falaries of the’judges* 
Under this admiflion, Gongrefs may poft- 
pone the feflions of the courts for eight 
or ten years, and eltablifh others, to 
whom they could transfer all the powers 
of the exifting courts* In this cafe, the 
judges would be held up to the people as 
penfioner6, receiving their money and 
rendering no fervice in return ; or Con* 
jgrefs might convert them into mere 
courts of piepoudre, afligning them the 
moft paltry duties to perform, and keep 
them continually in feflion, in incom e* 
nient places > whilft new courts could 
be ereded to perform all the effential 
bufinefs of the nation* This would be 
taking down the high pretenfions align¬ 
ed to the judges by the gentleman from 
N. Carolina (Mr* Henderfoi:) of being 
formed into a permanentcorpslor thepur- 
pofe of protecting the people again ft their 
worft enemies—themfelves ; and degrad¬ 
ing them into pitiful courts of piepoudre, 
rendering little fervice, and receiving 
large compenfations.-—And this would 
be the cafe, if party purpofes ivere the 
object, and not the general good. Ac¬ 
cording to his conftrudion, theie abfurd 
refults could not take place, unlefs by a 
Virtual breach of the conflitution. Be- 
Caufe, he contended, that fervice and 
compenfation were correlative terms; and 
that there ought ahvays to be a due ap¬ 


portionment of fervice to compenfatiofii 
This he confidered as the plain and found 
interpretation of the conftitmion, and 
the moment it is departed from, infinite 
abfitrdities enfue.—He intended to have 
taken another view of this fubjed as it 
refpeds the relative influence ot the law 
of the laft ftflion, and the propofed re* 
peal upon this queitiori ; but the gentle* 
man from MafTachuletts (Mr. Bacon) 
has put this fubjed in fo much ftronger 
point of view than he could do. that he 
■would refer to his remarks thereupon, 
obferving only that he had no doubt but 
that the law of the laft feflion, now pro¬ 
pofed to be repealed, was in every rel'ped 
as much oppol'ed to the dodrine of gen- 
tlemenjas the contemplated repeal could 
be* The fediens of the law particularly 
alluded to, are the 24th, in thefc words, 
“ And be it further enaded, That the 
diftrict cotirts of the United States, in 
and for the diftrids of Tenneffee Ken¬ 
tucky fhall be, and are hereby abolifh- 
edand the 2l r th, in theft words— 
“ And be it further enaded, That the 
circuit courts of the United States here¬ 
tofore eftablilhed, fhall teaft and be. 
abol iflied. * J 

He ftad he Would now examine fomes 
of the confequences of the dodrine a- 
gainfl the repeal, and fee if it can be re¬ 
commended from that confideration- 
Firft as it refpeds the judicial depart¬ 
ment. Its firft effed is to produce a 
perpetual increafe of judges and falaries, 
without any practicable mode of reduc¬ 
ing them. This is inconliftent both with 
the general fentiment of the people and 
the conflitution, that requires that no 
compenfation fhall be received, without 
an equivalent fervice rendered. 

The gentleman fromPennlylvania fup- 
pofes that there would be as much dan¬ 
ger that a corrupt legiflature would give 
an enormous fum, fay 200,000 dollars to 
one judge, as to increafe too great a 
number of judges. Yet he lays the le 
giflature is reftrained in cxprels words 
from lefiening the falary, and infers 


from that circumflance, that it is a’fo re¬ 
trained from leffening the number of of¬ 
fices. Mr. G. made from it, the direct 
contrary inference. If there be neither 
?. power to leifen the fum nor abolilh the 
office, there is no remedy for the evil the 
gentleman fuggetls. It is an incurable 
mifchief. There is therefore a neceflity 
for a power to abolifh the office, as a re¬ 
medy againd the enormous abufe of giv¬ 
ing fo large a fum without the renditi¬ 
on of equivalent fervice. And as ex- 
prefs words were deemed neceiTary to li¬ 
mit the diferetion of congrefs againil di- 
minilhing the fum, fo would there have 
been greater neceifity for exprefs words 
to limit the diferetion of congrefs againft 
the abolition of unneceffary offices. 

Mr. G. faid, that according to a found 
rule of interpretation, where a general 
g'rant of power is made, and one limita¬ 
tion to the general power, is exprefled— 
the exprefTion of that limitation is an 
exclulion of all intention to make any o- 
ther limitation whatever, by inference or 
implication. And this rule will apply to 
all other cafes put by gentlemen, where 
there is an exprefs limitation of legifU- 
tive authority. But the mod important 
confequence from this do&rxne is, that it 
eredls the judges into a body politic, and 
corporate, in perpetual fucceffion, with 
cenforial, and controling powers,over the 
other departments—And for what pur- 
pofe ? The gentleman from North Ca¬ 
rolina (Mr. Henderfon) has informed us, 
“ to protect the people againil their word 
enemies”—themfelves ! This is the real 
expofition of the objedt in very few 
but emphatical words. As the induce¬ 
ment to the adoption of this principle, 
gentlemen have reminded us of the fate of 
a foreign country, of the violent paffio.ns 
which agitate popular aflemblies, of the 
age, experience, the unafluming talents 
and unambitious virtue of judges. He 
laid the judges were feledled from their 
fellow-citizens, and he prefumed, podel- 
fed the fame human propenlities. He 
faid all men love power, and in general, 


thofe love it bed who know bed bow *© 
ufe it. Let us apply this remark to the 
judges of the United States. 

Very fhordy after the eltablilhment 
of the courts, the judges decided that they 
had jurifdidlion'over the dates in their 
fovereign capacity. Did tlvs, in the 
judges', feem unambitious? The dates 
thought it did not. It happened that 
during the revolutionary war. the date 
of M.iflachufetts Had iiTued certain obli¬ 
gatory bills, which were made transfera¬ 
ble, and which were outltandiwg without 
any provilion for their payment—fuits 
were inftituted on thele bills—the court 
determined to bring the great date of 
Maffachufetts, and not Virginia, on its 
knees, not at the feet of judice, but poli¬ 
cy. Upon the representation of Maffa- 
chufetts, an amendment was made to the 
conditution of the United States, de¬ 
claring that the conditution lliould not 
be condrued to extend to authoring the 
courts to arraign and pronounce judg¬ 
ment againd dates which had not con- 
fented to give up their fovereignty. 
Thus this unambitious proje£l of the 
judges was prodrated by a conditutional 
interpodtion. He read the amendment 
in the following words—“ The judicial 
power of the United States, (hall not 
be condrued to extend to any fuit in law 
or equity commenced or profecuted a- 
gainll one of the Ulifted States by citizens 
©f another date, or by citizens or fubje&s 
of any foreign date.” The judges have 
determined that they are judges in the 
lad refort upon the conditutionality of 
your laws. He propofed not to difeufs 
this quellion, becaufe he did not think it 
pertinent to the queftion before us. He 
only mentioned it to fhew their unlimit¬ 
ed claims to power. The judges have 
determined that their jurifdidbion extends 
to the lex non scrip:a 1 or rather to the 
lex non descrip a, or common law. Does 
this, in the judges, feem unambitious? 
This law pervades the whole municipal 
regulations of the country. It is unli¬ 
mited in its objeft, and indefinite in its 


m 

[ 13 ] 


cliara&er. 'Legaltie this unaffummg 
claim of jurifdidtion by the judges, and 
they have before them every objedt of 
legiftation. They have fent a mandato¬ 
ry procefs, or procefs leading to a man¬ 
damus, into the executive cabinet, to 
examine its concerns. Does this, in the 
judges, feem unambitious ? Now, Sir, 
examine and combine the extraordinary 
pretenfions to power, legalife them, and' 
you have prec.ifely that body politic and 
corporate, which gentlemen deem fo im¬ 
portant in the United States u to protect 
the people from their word enemies— 
themfelves l”—(Mr. ITenderlon of North 
Carolina.) He laid he (hold not refort 
fo frequently to this expreffion, but that 
he did confider it as the candid and cor¬ 
rect expedition of the objedl ®f gentle¬ 
men oppafed to the repeal. It was the 
dodtrine of irrefponfibility again (t the 
dodtrine of refponfihditv. The latter, 
he had endeavoured to (how, charadter- 
ifed the conflitution of the United States. 
It was the dodtrine of defpotifm, in oppo- 
fition to the reprefcntative fyftem. It 
was an exprefs avowal, that the people 
were incompetent to govern themfelves. 
This he believed to have been the great 
charadteriftic difference from the com¬ 
mencement of the adminiftration of the 
government to the prefent day. If in¬ 
deed there be a political corps neceffary 
to interpofe between the people, and 
themfelves, he confidered the judiciary 
corps fupported by the dodtrines on this 
floor, well cab ulated to eftedt that ob- 
jedt. 

He faid he would now examine the 
confequence of the dodlrine againft 
the repeal, as it refpedted the legifta- 
ture. He faid it would have a diredt 
tendency to impair the refponftbility of 
the reprefentatives to the people. He 
could not iiluftrate this observation bet¬ 
ter, than by giving the hiftory of the 
law propofed to be repealed. 

The firft bill for changing the orga- 
nifation of the courts of the United 
States, was reported to the Houfe of 


R^prefentat'ves the 1 1th March 1300; 
after undergoing fome difcuffion and 
amendment, it was recommitted and re¬ 
ported again the 31ft March 1800 ; oil 
the 14th of April it was poftponed by i 
majority of two votes. At this time 
the prefidential eledtion was approach¬ 
ing, andtherefult uncertain. The bill 
upon which the law in queftion was 
founded, was reported to the Houfe of 
Reprefentatives 19th December 1800, 
and palled that Houfe the 20th Janua- 
ary 1801. It was read in the Senate 
21 ft January 1801, and palled £he 7th 
of February 1801. At this time the 
prefidential election, fo far as it refpedted 
the then exifting preftdent, was ascertain¬ 
ed. 

Mr. G. faid he propofed to be parti¬ 
cular in ascertaining the faffs refpedting 
the paffage of this law and its execution, 
becaufe gentlemen had complained that 
rumors bad gone into circulation re- 
fpedlingits paflage and the appointments 
under it, not warranted by the facts a 
fenfe of juitice had therefore induced 
him to make the ftiidteft enquiry into 
the dates and fadts, and the relult of 
that enquiry upon his mind, had been 
as unfavorable to its advocates, as any 
impreflion which had been made by the 
rumors complained of. He faid at the 
time of palling the law no complaints 
had been pi dented to Congrefs again [t 
the competency of the former fyftem— 
not even a memorial from the bar of 
Philadelphia. He believed the former 
fyftem to have been amply competent— 
The bufinefs indeed had very much de¬ 
clined; he obferved that in the fp ing of 
1799, the whole number of c u es in- 
ftituted, exclufive of Maryland and 
Tenneffee, amounted to 703, befides 78 
criminal profecutions in Pennfylvank. 
In the fall of J 800 there were inftituted 
only 355 ; without any information 
however on this point, the bill ivas pci- 
fed. On the 13th of February 1801, 
it was approved by the Preftdent. On 
turning to the Journals of tl^at d^y it 


will be found that the Houfe of Repre- 
fentatives was not engaged in the ordi¬ 
nary bufinefs of the feffion. They were 
engaged in the extraordinary bufinefs 
of eleding a Prefident. 

In a note made on that day on the 
journals, will be found a mefTage from 
the Prefident in thefe words— u A mef- 
fage was received from the Prefident of 
the United States by Mr. Shaw his Se¬ 
cretary, notifying, that the Prefident 
did this day approve and fign an ac\ 
which originated in the Hopfe of Re- 
prefentalives, entitled an ad to provide 
for the more convenient organization of 
the courts of the United States.” Up¬ 
on exam ing the journals themfelves, he 
faid he found an entry in thele words, 
“ The time agreed upon by the lad- 
mentioned vote being expired, the dates 
proceeded jn manner aforefaid to the 
twenty-ninth ballot ; and upon examina* 
tion thereof the refult was declared to 
be the fame.” Mr. G. faid, need I re¬ 
mind gentlemen, now prefent, who were 
agents in the exiding fcenes, of the ex¬ 
traordinary fituation of Congrefs at that 
moment. When in the Houfe of Re* 
prefentatiyes the ordinary bufinefs of le- 
giflation was fufpended, a permanent 
feffion decreed, when lodging and fub- 
fidance were furnidled the members 
within the walls of the chamber, when 
even a fick bed was introduced to enable 
its patient to difcharge a (acred duty.-r— 
Need I awaken the recolle&ion of our 
fellow-citizens, who were looking with 
indignant anxiety on the awful fcene, 
hehclding their reprefentatives urged by 
the mod tempeduous padions, and pufh- 
ing forward to immolate the conditution 
of their country ? No, Sir, the awful 
fcene is frefhly remembered 1 And what 
was its objedl ? To prevent the fair and 
known expreffion of the public will in 
the highed function it has to perform.—* 
In the choice of the chief executive rha- 
gidrate of the nation, In this date, of 
things, when all confidence amongd the 
lumbers of this houfe was lad—In the 


highed paroxifm of party rage, was thtg 
law uffiered into exidence. And now 
its advocates gravely tell us. to be calm, 
to guard againd the danger of our paf- 
fions. They tell us at the fame time, 
that the law they have pa (Fed is facred! 
Inviolable \ irrepealable! Does it merit 
this extraordinary chara&er from the 
circumftanees which accompanied its 
palfage ? It does not. 

Let us examine how this law was car¬ 
ried into efFe«ff» Members of the legif- 
lature, who voted for the paffage of the 
law, were appointed to offices, not in¬ 
deed, created by the law, the conditution 
having wifely guarded againd an effect 
of that fort; but to judicial offices pre¬ 
viously created ; by the removal or what 
was called the promotion of judges from 
the offices they then held, to the offices 
newly created, and fupplying their pla¬ 
ces by members of the legidature, who 
voted for the creation of the new offi¬ 
ces. In this fubditution however it ap¬ 
pears, that no refpeft was paid to ano¬ 
ther provifion of the conditution. The 
<6th feefion of the Id Art, of the condi¬ 
tution contains thefe words, 1 no iena- 
ror or reprefentatiye (hall, during the 
time for which he was elected, be ap¬ 
pointed to any civil office under the au¬ 
thority of the linked States, which ffiall 
have been created, or the emoluments 
whereof ffiall have been increafed dur¬ 
ing fuch time ; and no perfon holding 
any office under the United State? ffiall 
be a member of either houfe dining his 
Continuance in office.' If vacancies had 
exilled in the previoufly exiding judicial 
eftabliffiments, the appointments of the 
members of the legiflature, might not 
be confidered as a direft breach of this 
provifion in the conditution; but this was* 
not the fa&, no vacancies did exid. It 
was neceffary, to make provifion for 
members voting for the law, that va¬ 
cancies ffiould be made by the removal 
or promotion of the then exiding judg¬ 
es. This was done under this authori* 
ty in the conditvition. 2d fe&Dn 2d 


[ I? ] 


Art. and he (to wit) 4 the Prefident of 
the United States, tliall nominate and 
by and with the advice and content of 
the fenate, fball appoint ambalfadors, 
and other public mimfters and confuls, 
judges of the fupreme court, and all o- 
ther officers of the United States, See.' 
again, 4 the Prefident lhall have power 
to fill up all vacancies that may happen 
during the recefs of the fenate, by 
granting commiffions which fball expire 
at the end of their next feffion.’ How 
did the then Prefident exercife the pow- 
er in* the prefent cafe ? He did not wait 
until the vacancies ffiould happen. He 
attempted to make vacancies, by what, 
he called, the promotion of judges, al¬ 
though they held their commiffions of 
him 4 curiogguod behaviour,’ and with¬ 
out waiting to know whether the judg- 
ts would accept the promotion or not, 
upon which event alone a vacancy could 
accrue ; he proceeded to appoint and 
actually commiffion members of th * le- 
giflature to offices, then a&ually held 
by other commiffions granted to other 
per'i ' What was the effect of this 
procedure ? That two perfons held com- 
rniffions to perform the lame duties, 
although one perfon only was authorif- 
td by law to difeharge thofe duties ; 
vhilit tin office, wliere the promotion 
was refilled, remained vacant. This 
was actually the cafe, in fevers! of the 
difiridts of the United States. This 
lubject will be put into a ftill llronger 
point of view by examining the juur- 
ix^ls of the fenate, which he was lorry 
c do for that purpofe. When dif- 
cuffipg the bill in queftUn in the le- 
rate, he found tVis entry on their jour¬ 
nals, 4 on motion to firike out the whole 
of the bill after the words (from and af¬ 
ter,’) lection lit line 2d, for-the pur* 
pofe of inlerting as follow, 4 (to wit) a 
fdbftitute for the bill’. On the auef- 
tion to agree to this motion, it palled in 
the negative—yeas 13—nays 17. fie 
oblerved amongft the nays, tlie names 
<*f Mr. Green, of Rhode-Ifland ; end 


Mr. Read, of South-Carolina. Both 
thefe gentlemen received appointments 
in virtue of the promotion of judges 
under this law. If thefe gentlemen 
had voted on the oppofite fide of the 
queflionj the law would never have been 
in exiftence. He mentioned this cir- 
cumitanee not to impugn the motives of 
any gentleman, but, to demonllrate the 
temptation held out to the members 
of the legiflature under the doctrine 
contended for againfl the repeal of this 
law. The refufal of the prefent Prefi¬ 
dent to conedt what was called a mis¬ 
take in Mr. Green’s appointment, hav¬ 
ing excited fome clamor, it was necef- 
fary to put that fubjecl in a correct 
point of view. 

It feeins that in filling up Mr. Green’s 
Commiffion, the word 4 circuit’ inftead 
of the word 4 diltridf,’ was inferred; 
it is prefumed by mi hake. If the com- 
miffion was intended for the circu.t 
court, it was a breach of the conltitu- 
tion, in its molt obvious letter. If it 
was intended for the difirict court, it 
was void ab initio ; becaufe at the date 
of the commiffion, no vacancy had'hap¬ 
pened, and the Prelident’s light to ap¬ 
point depended on that precedent con¬ 
dition, and he therefore in making* the 
appointment, attempted to exert tie a 
power he did not poifefs. It mu ft be 
obvious to every gentleman, that 
Mr. Green’s accepting the commif¬ 
fion under all the incidents attending 
tire cafe, could turn i 111 but a negative 
recommendation of Mr. Green in his 
application for that er any other ap¬ 
pointment. Upon a review of the lvif- 
tory of the law In queftion .according 
to the doctrine of its advocates, tire 
temptation to the leg* 'future, to make 
permanent, irrevocable provilion for 
themfeives mult be obvimrs to every im¬ 
partial obfeiver. If when a judicial 
eliablifhment be once made, it becomes 
irrevocable, how eafy would it be, for 
a legiflature, combined with the execu¬ 
tive to compel)late themfeives fur the 
C 


w 

{ JS ] 


lofs of the confidence of their conflitu- 
ents, by following the example before 
us ? By ere£lhig a new tier of judges, 
holding eut to them additional emo¬ 
luments, and by lilting up the vacancies 
occalioned by their promotion with the 
members of the legislature. 

This operation would be mod likely to 
take place when the representatives had 
loll the confidence of their conftituents, 
and of courfe lei's likely to be influenced 
by coniiclerations of public good. Again, 
fir, the finecure fyftem thus eftabfifhed 
would have the advantage of all other 
fitnilar fyftem s exiting in the world ; be- 
caufe if in other countries the iinecure 
fyftem has become opprefiive to the. peo¬ 
ple, they have the confolation to recolledi, 
that the evil may be leffened by the com¬ 
petent. authority ; but according to the 
do&rine upon which the fyftem is bottom¬ 
ed in the United States, no remedy can 
be applied to the inifehief by the union 
of all :he refponfiblv agents of the peo¬ 
ple—How, fir, would the framers of our 
confiitution lament, after all the care and 
circumfpection they had uled to exclude 
this fyftem entirely from the practical 
operation of the government, that the 
confiitution itfelf fiiould be made the in- 
ilrument of its introduction, and its per¬ 
manent irrevocable eftablifhvncnt ? And 
tins to » at the moment of an expiring 
adminiftration ; when the paftlons of men 
jufi parting from power, were breaking 
down every impediment which flood in 
the way of attaining their objeCt ! Up¬ 
on the whole, therefore, it appears, 
that this dodtrine of the irrepealibility of 
laws derives no cordideration from the 
confeqnences which naturally flow from 
it. 

Mr. G. faid, that having exhaiifted fo 
great a portion of the time and attention 
of the committee, in difelifting the con- 
iViUitional quefiion, which had been made 
the cardinal point in the debate, he'pro¬ 
ne fed t-i confine liimfelf to very few ob- 
fvrv aliens upon the expediency of the 
contemuhted'it-peal. lie laid he took it 


for granted that the former judicial ‘fyf¬ 
tem was competent to the difeharge of 
all the judicial hufinefs in the United 
States ; but if that lliould be denied, he 
thought it demonftrable from the docu¬ 
ment before the committee. The gen¬ 
tleman from Delaware (Mr. Bayard) 
had intimated a doubt whether the Prc- 
fident had aCled correClly in favoring us 
with the document ; he fhould only ob¬ 
serve in reply, that the confiitution irn- 
pofed a duty upon the Prefident from 
time to time, to give to Congrefs in¬ 
formation of the fiate of the union, and 
recommend to their conlideration, fucli 
meafures as he ihall judge neceffary and 
expedient; he laid tfiat the number of 
fuits in the courts of the U. States mull 
always be very fihall from the limited 
objects of their jurifcli<Stion ; this will ap¬ 
pear by reading* the 2d fe&ion of the 3d 
article of the confiitution, limiting their 
jurifdiclion. The whole expence of the 
exiiting lyftem is 137,000 dollars, of 
■■which 40,000 or 50,000 dollars may be 
attributable to the new fyftem ; the efti- 
mates differing between rliefe two funis. 
Whether the expence be eftimated either 
according to the lervice to be rendered, 
or by comparifon with any other fyftem, 
it appeared to him to be enormous. He 
examined the document befora us by 
way of ascertaining the relative view of 
expence and fervicc, and alfo the com¬ 
petency of the former fyftem, to the 
difeharge of the bufinefs, He would 
not however be refponfible for precife 
clerical accuracy in his addition, which 
has alfo been deemed a fubjefl worthy 
of criticifm againft the Prefident of the 
United States. But if it be within 25 
per cent of being correft, it will de- 
nionftrate, 1ft, that the former courts 
were competent to the bufinefs; 2d, 
that the number of enufes bear ro pro¬ 
portion to the expence of the inftitu- 
tion. 

He laid he would prefent to the view 
ef the committee, the whole number of 
caufes inftituted at the refpeUive fief- 


/ 


r 

fions of the courts from the fpring of 
1796, to the fpring of 1801. He had 
fixed upon the year 1796 becaufe the 
bufind's began then to increafe under the 
influence of the Britifh treaty. 

In all the circuit courts of the United 
States, except Maryland and Tennefiee, 
the whole number of caufes of every 
description indituted in the fpring of 
1796, were 294, fall 192—-1797, fpring 
481, fall 397—1798, fpring 325, fall 
397—1799, fpring, 703, exclufiye of 98 
criminal profeciitions in Pennsylvania, 
fall 456—1800, fpring 461, 70 crimi¬ 
nal profecutions in Pennsylvania, fall 
355 —1801, fpring 350—making the 
common calculation of fuits fettled be¬ 
tween the parties without trial, dif- 
millions, abatements, See. See. and it 
would appear that the whole number of 
judgments againd folvent perfons, would 
hardly compenfate the expence of the 
inftitution. It alfo appears that the 
number of caufes left to be tried, could 
eafilybe decided by the fix former judges. 

He Said upon looking over the number 
of fuits in the eadern circuit, it appeared 
to him drange, that the members repre¬ 
senting that part of the country, fhould 
infift upon increafing the expence of the 
fyftem, when the courts have there fcarce- 
ly any bufinefs to attend to; and that 
gentlemen in the Southern dates, where 
the bufmeSs was greater, Should be wil¬ 
ling to leflen the expence. He Said he 
never heard the dualled complaint in 
the date he represented refpeCting the 
incompetency cf the former courts to 
diScharge the bufinefs in that'date. He 
believed they had always gone through 
the docket, whenever they attended, and 
as far as his own observations went, that 
was the faCt. Pie Said, it appeared drange 
to him, that new courts and new expell¬ 
ees fhould be called for in other parts 
of the United States, when the old 
courts were competent to the bufinefs in 
that date, wfiere the bufinefs has been 
confiderably more than in any other date, 
although it is now very, much declined, 


//A' 



and probably will decline dill more. In 
the courts of Maine, Well Pennsylvania, 
Wed Virginia, and Wed Tenneflee* 
no Suit at all had been indituted in Tune 
lad. 

Under the view of the fubjeCt thus 
pfeiented, lie confidered the late courts 
as ufelefs and unneceffary, and the ex¬ 
pence, therefore, was to him highly ob¬ 
jectionable. He did not confider it in 
the nature of a compensation, for there 
was no equivalent rendition of fen ice. 
He could not help coniidering it as a tri¬ 
bute for pad fervices—as a tribute for 
the zeal difplayed by thefe gentlemen in 
Supporting principles which the people- 
had denounced. He thought the fede¬ 
ral maxim always was u millions for de¬ 
fence, not a cent for tribute .” He could 
not confent to tax the people even one 
cent, as a tribute to men, who dif'refpeCt- 
ed their principles. 

Another objection he had to thomew 
organization of the courts was, their ten¬ 
dency to produce a gradual demolition 
of Hate courts, by multiplying the num¬ 
ber of courts, increafing their jurisdicti¬ 
on, making bonds or obligatory bills af- 
fignable with the privilege of bringing 
Suits in the name of the afiignee, See. &c. 
or as gentlemen fay, bringing federal juf- 
tice to every man’s door ; the date courts 
will be oufled of their jurisdiction, which 
he thought by no means a defirable 
event. Under this consideration alone, 
and under the conviction he felt, of the 
inutility of the courts, he fhould vote for 
the repeal. 

Mr. G. concluded by obferving, that 
upon the whole view of the fubjeCt, feel¬ 
ing the firmed conviction, that there is 
no conditutional impedient in the way 
of repealing the aCt in quedion, upon the 
mod fair and candid interpretation of the 
constitution. Believing that principles 
advanced in oppofition, go dirgCtly to 
the dedruCtion of the fundamental prin¬ 
ciple of the conditution, the refponfibi- 
lity of all public agents to the people ; 
that they go to the edabliflunent ct a 


/// 

[ 20 ] 


permanent corporation of individuals in- 
veiled with ultimate cenforial, and con¬ 
trolling power over all the departments 
of the government, over legislation, ex¬ 
ecution, and decilion, and irrefponfible 
to the people ; believing that thefe prin¬ 
ciples are in direct hoftility with the 
great principle of reprefentative govern¬ 
ment ; believing that the courts former¬ 
ly eftahlifhed, were fully competent to 
the bufinefs they had to perform, and 
that the prelent courts are ufelefs, un- 
neceffary and expemive ; believing that 
the fupremc court has heretofore dif- 
charged all the duties aUigned to it in 
leis than one month in the year, and that 
its duties could be performed in half 


that time ; confiderlng the compfnfa- 
tions of the judges to be am on git the 
highefl, given to any of the big lie ft offi¬ 
cers of the United States, for the fen i- 
ces of the -whole year; conficlering tl e 
compenfations of all the judges great!». 
exceeding the ferviccs afiigned them, nr- 
well as eonfidering all the circmnftan- 
ces attending the fubftitution of the new 
fyflem for the old one, by mcrealing the 
number of judges, and compenfations, 
and leffening their duties by the diilribc- 
tion of the bufinefs into a great number 
of hands, See,—wh'dil acting under thefe 
impreifions he fthould vote again ft the 
motion new made for linking - out the 
flrfl faction of the repealing bill. 

















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